by David M. Reutter
When the justice system fails a criminal defendant, the last hope is clemency. The rash of 70 pardons and commutations in the waning days of the Trump presidency show that the clemency process is an inadequate alternative to criminal justice reform.
Steve Bannon, a former White House strategist, was amongst the last of Trump’s pardons. That pardon ended the prosecution against Bannon on charges that he bilked donors to an organization that claimed to be raising money to build a wall along the Mexico border.
In contrast to that high-profile pardon was the commutation granted to Craig Cesal. He served 17 years on a life sentence imposed for a conviction that stemmed from repairs he made on trucks that transported marijuana.
Pardons and commutations for persons like Cesal are rare. Typically, they occur due to influence from people like Kim Kardashian or some other high-paid lobbyist.
Trump granted a total of 94 pardons and commutations over his four years in the White House. Dozens of them were nonviolent drug offenders, and 18 of them were serving life sentences.
Trump shortened more sentences than all but one of his eight predecessors. After the batch of 70 Trump commutations were announced, the New York Times complained that Trump had “largely bypassed a rigorous Justice Department process for vetting and approving” pardons and commutations. Yet, two days later, the Times reported that the process “has left thousands of petitions waiting for review by a small team of lawyers who are unable to keep up.”
The problem with that process is that prosecutors “were unreceptive to suggestions that a pardon could tell good news about their work by showcasing rehabilitation and redemption,” said Margret Colgate Love, the Justice Department’s pardon lawyer from 1990 to 1997. As a result, “the Justice Department sent few favorable recommendations to the White House.”
Barack Obama granted a record 1,715 commutations, nearly all of them during his second term. Still, he granted only five percent of the pending clemency applications.
President Biden has said that he embraces reform of the rigid criminal justice laws he championed in the 1990s. Criminal justice reform advocates are still waiting for the rhetoric of the campaign to result in legislative action. It is clear that the odds of receiving a commutation or pardon are slim and that such administrative action is not real reform.
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